Citation Nr: 0639549
Decision Date: 12/19/06 Archive Date: 01/04/07
DOCKET NO. 03-15 160A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for osteochondritis
dissecans of the left knee.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
INTRODUCTION
The veteran served on active duty from January 1980 to
October 1980.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
FINDINGS OF FACT
The evidence is in equipoise as to whether the veteran's left
knee osteochondritis dissecans was incurred during active
service.
CONCLUSION OF LAW
Service connection is warranted for osteochondritis dissecans
of the left knee. 38 U.S.C.A. §§ 1110, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duties to Notify and Assist
Under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005),
and 38 C.F.R. § 3.159 (2006), VA must assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. These provisions also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
Because the determinations issued in this decision is wholly
favorable to the veteran, no further discussion of compliance
with the above cited law and regulation as is required since
Remand of the claim addressed in this decision for any
further development would be adverse to the veteran's
interests.
Service connection for osteochondritis dissecans of the left
knee
The veteran claims that service connection is warranted for
osteochondritis dissecans of the left knee. He claims that
he did not have a knee disability before he entered service,
and argues that even if he did, the rigors of 8-months in
Marine Corps boot camp and infantry training aggravated such
a condition.
To establish service connection, the record must contain (1)
medical evidence of a current disability, (2) medical
evidence, or in certain circumstances, lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury. In other
words, entitlement to service connection for a particular
disability requires evidence of the existence of a current
disability and evidence that the disability resulted from a
disease or injury incurred in or aggravated during service.
38 U.S.C.A. §1110; 38 C.F.R. §3.303(a). See also Pond v.
West, 12 Vet. App. 341, 346 (1999). A veteran may also be
entitled to service connection for a disease or injury
aggravated by service. 38 U.S.C.A. § 1110 (West 2002).
A review of the veteran's available and limited service
medical records shows that when he was examined in November
1979, prior to service entrance, no disability of the knee or
knees was noted. There is a notation on his form DD214 that
states the veteran was separated from service because he had
a physical disability that existed prior to service and was
not aggravated by service. Osteochondritis dissecans of the
left knee was not identified nor was any other physical
disability. There are no other service medical records
available, although many attempts have been made to find
them. The law provides that a veteran will be considered to
have been in sound condition when examined, accepted and
enrolled for service, except as to defects, infirmities, or
disorders noted at entrance into service, or where clear and
unmistakable (obvious or manifest) evidence demonstrates that
an injury or disease existed prior thereto and was not
aggravated by such service. Only such conditions as are
recorded in examination reports are considered as noted.
38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Here, the evidence
does not show that the veteran had a left knee disability of
any kind prior to service and the veteran is considered to
have been in sound condition at the time he entered service.
As noted, the record contains no other service medical
records and there is no record of a discharge examination.
However, the file contains the veteran's application for
compensation or pension received by the RO 13 days after the
veteran was discharged from service. In that application,
the veteran lists "ostocronditis dissican on 3/4/80 and 5/80"
to describe the nature and history of his disability. While
the RO made attempts at that time to find the veteran's
service medical records, their efforts failed. The file
appears to have been un-worked for many years until the
veteran submitted another claim for benefits in 2001. The RO
again attempted to find records associated with the veteran's
short period of service but were unsuccessful. Under these
circumstances, the Board looks to other evidence of record to
make its determination.
Other evidence of record includes clinical treatment notes
from the veteran's private physicians. Notes recorded in
1997 are of particular interest. One shows that the veteran
had a twisting injury to his left knee and was seen in the
emergency room. He reported that he had been evaluated by
the military 15 years prior and was diagnosed with
osteochondritis dissecans. He had been scheduled for surgery
but it was cancelled because of other illness. Magnetic
Resonance Imaging (MRI) in 1998 confirmed a diagnosis of
osteochondritis dissecans of the left knee. In February
2002, Dr. Rutledge provided an opinion that the veteran has
osteochondritis dissecans of the knee and a possible loose
body that could be aggravated by squatting, stooping,
climbing, running, and jumping.
In cases where the record is unavailable or lost, there is a
heightened obligation to explain findings and to carefully
consider the benefit of the doubt rule. O'Hare v. Derwinski,
1 Vet. App. 365, 367 (1991). The case law does not, however,
lower the legal standard for proving a claim for service
connection, but rather increases VA's obligation to evaluate
and discuss in its decision all of the evidence that may be
favorable to the claimant. See Russo v. Brown, 9 Vet. App.
46 (1996).
Here, the question is whether the veteran had osteochondritis
dissecans in service. The answer is hampered by the fact
that no service medical records are available. What is
available is evidence provided by the veteran in his 1980
claim for osteochondritis dissecans made days after his
service discharge. The fact that this claim was made
proximate to service discharge lends credence to the
veteran's contentions that he injured his left knee in basic
training and that the disability was diagnosed as
osteochondritis dissecans in service.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). Here, there is no evidence
of a preexisting disability when the veteran entered service.
He claims he was injured and indeed, he was separated from
service after 8 months and 4 days. He filed a claim with VA
for benefits that was received 13 days after he was separated
from service. He currently has a diagnosis of
osteochondritis dissecans of the left knee. While it would
be helpful to have the veteran's service medical records, it
is apparently impossible and therefore, under law, the
veteran is given the benefit of the doubt. Accordingly,
since the evidence is at least in equipoise, service
connection is granted for osteochondritis dissecans of the
left knee.
ORDER
Service connection for osteochondritis dissecans of the left
knee is granted
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs